Cash, Corruption, and the Rule of Law: Campaign Finance Reform Needs Another Look

Constitution Day is observed Friday, September 16, 2016. In celebration of the ratification of the U.S. Constitution, IAALS is joining with others around the country to share perspectives on the history, impact, and promise of the Constitution. This blog is part a series of Constitution Day posts, authored by members of the O'Connor Advisory Committee to our Quality Judges Initiative, which are collected here. Join the conversation in the comments below, or on Twitter with #ConstitutionDay.

A couple of years ago at Aspen, Margaret Marshall, who retired as Chief Justice of the Massachusetts Supreme Judicial Court in 2010, issued a chilling warning about how nations lose the rule of law. Marshall, who spent her early years in apartheid South Africa, said that when the rule of law goes, it does so “astonishingly quickly. The current election cycle brings to mind Marshall’s admonition, and in particular, the allegation that the “game is rigged”  leads again to considering the kind of corruption that campaign donations foster: The Citizens United Problem. The case has become a dog whistle on both sides. Progressive surrogates suggest that if only the case could be reversed, the flow of donations from corporations to political campaigns would cease, and with it corruption of the process. On the other side, conservatives caution that to cease the flow of funds would eviscerate the First Amendment guarantee of free speech. And guess what, both sides use the parade of horribles to—you got it—raise money.

As my colleague Bert Brandenburg, former Executive Director of Justice at Stake, observed right after Citizens United was decided, the case has very little impact on campaigns at the state level, since most states did not cap donations from corporations and labor unions in the first place. At the federal level, the mischief that liberals want to associate with Citizens United actually goes back way further to Buckley v. Valeo, a garden variety First Amendment case in 1976 decided by the Burger Court per curiam—that is, with the agreement of Brennan, Blackmun, and Marshall, the Court’s great liberals. 

In Buckley, the Court ruled that the post-Watergate Federal Election Campaign Act’s 1971 restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures violated the First Amendment. It found that these practices did not necessarily enhance the potential for corruption that individual contributions to candidates did, so that restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association.

Looked at in the context of today’s elections, the conclusion seems dubious. Independent expenditures channeled through the 527 vehicles, including super-PACs, created in the aftermath of the 2002 McCain-Feingold update of 1971’s FECA have been used to do everything from targeting judges in state Supreme Court elections to conducting shadowy issues campaigns in Presidential races. Wealthy individuals on both the right and the left funnel money to races in the form of so-called issue ads. The problem is well beyond the corporate donations that were the subject of Citizens United (and the critics rarely point out that the same provisions allowing corporate donation also facilitate independent expenditures by Big Labor). But the solution is not to overturn Citizens United—it is for Congress to revisit campaign finance law, and close loopholes exacerbated by McCain-Feingold.   

This is the only answer to the public distrust of the political campaign process that has become so florid in the current election cycle. It is a response that does not come from the Courts, but can only come from Congress. It is why in a rule of law state, all three branches must exercise the responsibilities that they take when they swear to uphold and defend the Constitution of the United States. Because, in the absence of that, we could well become the country Margaret Marshall warned us about.